Tea Leaves and Second Thoughts

With the Supreme Court set to rule on Obamacare as soon as tomorrow, everyone is reading the tea leaves and making predictions. Orin Kerr, writing at the Volokh Conspiracy, took note of the jaunty bearing of Justice Ruth Bader Ginsberg in a recent speech before a liberal group, wondering if it meant she was pleased with the outcome of the case. Meanwhile, a poll of former Supreme Court clerks found that more than half think the individual mandate will be overturned. But this is a 22 percent jump from a poll of the same cohort taken before the oral argument went so badly for lib-world.

Which brings us to this morning’s comedy headline in the New York Times: “Supporters Slow to Grasp Health Law’s Legal Risks.” Please, liberals weren’t “slow” to perceive a risk, because they no longer believe the Constitution should place any restriction on government power to regulate individual economic behavior. NY Times reporter Peter Baker recalls:

Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked with disdain. “Are you serious?”

One of the mysteries of the drafting of Obamacare concerns why there was no “severability” clause in the Senate bill that had to be passed by the House without change following the election of Scott Brown in January 2010. The lack of a standard severability clause threatens to take down the whole bill if the individual mandate is struck. Some people have said this was merely the usual incompetence and forgetfulness at work as the Senate rushed their bill, and that a standard clause would have been inserted in the conference bill that would have come from a normal process. A more interesting theory around town is that the bill’s authors deliberately omitted it almost as a dare to the Supreme Court. That view finds some circumstantial backup in Baker’s story:

Looking back, Democrats said they had had every reason for confidence, given decades of Supreme Court precedents affirming Congress’s authority to regulate interstate commerce, and lawyers who defended the law said they had always taken the challenge seriously even if politicians had not. But they underestimated the chances that conservative judges might, in this view, radically reinterpret or discard those precedents.

Ah, yes, the main precedent would be the crazy 1942 Wickard decision, which I’ve smacked around here before. It is probably not necessary for the Court to reach Wickard to overturn Obamacare. As I’ve pointed out before, people should note Justice Kennedy’s language in the great Citizens United opinion, where he said “[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision,” especially when “adherence puts us on a course that is sure error.” If ever there was a law that puts us on the course of “sure error,” it is the individual mandate of Obamacare and the bureaucratic barnacles (such as the state insurance exchanges) that hang from it.

It may not even be necessary to invoke any kind of constitutional originalism to strike down Obamacare. Here’s the question for the day for libtards: If the doctrine of the “living Constitution” holds that government power can be expanded to rein in market failure, why cannot the same doctrine be used to rein in government failure?